Welcome to the new world of passive surveillance

Anyone who has watched a crime procedural knows the hallmark images of surveillance: a man sitting with headphones on and recording the call in the next room, a security guard eating donuts in front of dozens of security camera TVs, a person with binoculars peeking from a parked car into a house.

But the Internet Age has ushered in a more sophisticated — and notably — passive form of surveillance, and it’s that technique that the government is using in its PRISM program.

And it raises the question: If a piece of information has been collected but has never actually been seen by the human eye, is it considered surveillance?

It sounds like a terrible lateral thinking puzzle or a zen metaphor, akin to whether or not sounds are heard when a tree falls. But the government’s embrace of data mining and similar activities, ostensibly spurred by the Bush Administration post-9/11 and the law enforcement-expanding Patriot Act, has erupted in the last week’s NSA surveillance scandal. Data mining is happening all around us, and when the government gets involved, the implications become much more visible and politcally explosive.

We experience data mining every day as we interact with the web, particularly when it comes to ad targeting and “custom” content on places like Facebook and Google. It’s the reason why you’ll see ads for new washing machines the moment you email your best friend about yours being on the fritz, and it’s why you see your sister’s information on your Newsfeed more often than that of your coworker’s old roommate. Algorithms detecting patterns are like the rotisserie chickens of the internet: You can set it and forget it, and it’ll do the work for you.

But what might be the ethical concerns that arise when ad-tech companies mine data become legal concerns when the government gets involved — simply because it isn’t using the data to sell things, but to potentially arrest people. In other words, the grey areas around data mining becomes starker, and the danger to constitutional rights becomes more apparent. The Fourth Amendment states the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This is all well and good, but what about data that isn’t necessarily being “searched” or “seized,” but rather filtered and stored? While the NSA has massive amounts of big data, more than could ever be individually seen by a single person (or even a team of people), that information is still there. And, even if someone isn’t doing anything “wrong,” the government can still check for patterns.

This undefined zone that has been pushed and pulled for the last 12 years is going to be the lasting legacy of the government’s struggles with the online world. And, much like one of those lateral thinking puzzles, it needs a lot more positing before we can come up with a good answer to it.